KATEMI NDAKI v REPUBLIC 1992 TLR 297 (CA)

 

KATEMI NDAKI v REPUBLIC 1992 TLR 297 (CA)

Court Court of Appeal of Tanzania - Mwanza

Judge Omar JJA, Ramadhani JJA, Mnzavas JJ

12 October 1992 G

Flynote

Criminal Law - Murder - Provocation - Failure to address the assessors on the issue of

provocation - Effect of.

-Headnote

The appellant was charged with and convicted of murder c/s 196 of the Penal Code H

and sentenced to death. Apart from the evidence of PW.1 who asserted to have

identified the appellant at the scene of crime there was a repudiated confession of the

appellant saying that he killed the deceased in the heat of passion caused by sudden

provocation by the accused. The trial court did not address itself on the issue of I

provocation raised in the confession.

1992 TLR p298

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA

Held: The omission to address the issue of provocation raises doubts as to whether A

an ordinary person of the community to which the appellant lived would not have

been provoked by the deceased's outlandish behaviour. The doubt is resolved in

favour of the appellant. B

Case Information

Appeal allowed.

Kahangwa, for the appellant

Muna, for the Republic. C

[zJDz]Judgment

Omar, Ramadhani and Mnzavas, JJ.A.: In this appeal the appellant was charged with

and convicted of murder c/s 196 of the Penal Code and sentenced to death.

Dissatisfied with the finding and the sentence of the High Court, (Moshi, J.,), he is

appealing to this Court. D

Arguing the appeal on behalf of the appellant Mr. Kahangwa, learned defence

Counsel submitted that the appellant killed the deceased because of provocation

offered to him by the deceased.

In the alternative, but without prejudice to the defence of provocation, it was Mr. E

Kahangwa's submission that because one of the assessors was of the opinion that

conditions for proper identification of the appellant as the person who fatally attacked

the deceased with a panga on the material night were lacking the trial Court should

have resolved the doubt in favour of the appellant and find him not guilty. F

The Court was invited to allow the appeal and acquit the appellant. In rebuttal Mr.

Muna, learned State Attorney, supported the conviction. The learned Counsel

submitted that PW.1, daughter of the deceased, had identified the appellant through

light of a torch, one Silvester, shone in the room. Mr. Muna was also of the view that

even if G the question of identification of the appellant was resolved in his favour

his confession to the justice of the peace implicated him with the murder of the

deceased. It was the learned State Attorney's submission that the trial Court was right

in coming to the conclusion that appellant's confession to the justice of the peace was

free and H voluntary. Mr. Muna argued that on the evidence tendered in the lower

Court the defence of provocation was not available to the appellant.

In this case the evidence that tended to connect the appellant with the death of the

deceased is the testimony of Kweji Katwale, I

1992 TLR p299

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA

(PW.1), who testified that she saw the appellant through a torch light as he was A

mercilessly cutting the deceased with a panga.

One of the assessors did not however believe that the witness, (PW.1), could have

properly identified the appellant as the killer notwithstanding the aid of a torch;

given that it was a dark night.

The other evidence which tended to implicate the appellant with the death of the B

deceased was appellant's extra-judicial statement which apparently amounted to a

confession. He however in his defence in Court repudiated part of the statement

which was most incriminating. This was his statement that he had visited deceased's

house at about 1 a.m. and attacked the deceased, deceased's wife and one of his

children with C a panga.

The learned trial judge examined the confession in great detail and on the basis of the

decision in Tuwamoi v Uganda [1967] E.A. 91 came to the conclusion that appellant's

confession - exhibit P.3, was given freely and voluntarily; and that it could not but be

true. With respect to the learned trial judge we have no quarrel with the D finding

that appellant's confession could not have been anything but true given the enmity

between the deceased and the appellant based on belief of witchcraft and bearing in

mind that at the material time the appellant was facing a charge of threats to murder

in E a Primary Court where the deceased was the complainant.

Our only concern is whether appellant's confession read as a whole afforded him a

defence of provocation.

We hereby quote in extenso his confession to the justice of the peace: F

MAELEZO YANGU MAFUPI

TULIKUWA NA KESI MAHAKAMA YA MWANZO KABLA NA

MAREHEMU KATWALE G SAHANI. BAADA YA KUTUKANANA KWENYE

POMBE NILIWEKWA LOCK-UP, BAADAYE SIKU HIYO NILIPATA MDHAMINI

NA KUPEWA TAREHE YA KURUDI. KABLA YA TAREHE YETU MAREHEMU

ALINISHITAKI SUNGUSUNGU NIKADAIWA NIJIELEZE. NILIJIBU H KUWA

KESI YANGU IKO MAHAKAMANI. NILITOLEWA NJE ILI WAJADILI. BAADAYE

NILIITWA NA KUELEZWA NAPEWA VIBOKO 16 NA SH. 20,000/=, NILIKATAA

KUPIGWA KUWA WATANIUA. HIVYO NILILIPA SHS. 10,000/= ILI NISIPIGWE,

PIA NILILIPA SHS. I 20,000/=, JUMLA SHS.

1992 TLR p300

OMAR JJA, RAMADHANI JJA, MNZAVAS JJA

A 30,000/=. BAADAYE NILIULIZA KAMA YAMEKWISHA NDIPO

MAREHEMU ALIKUBALI IMEKWISHA NDIPO TUKAONDOKA. NILIENDA

MAHAKAMA SIKU MOJA KABLA YA SIKU YETU. SIKUKUTA MTU, KESHO

YAKE SIKWENDA NIKAWA NA SAFARI. KURUDI NILIKUTA KUITWA

SHAURINI NDIPO NILIKASIRIKA KUONA WATOTO WANGU WANALALA

NJAA B NA BADO MAREHEMU ANAENDELEZA KESI NA FEDHA ZANGU

ZOTE NIMEMALIZIA KWAKE. NILIENDA KWAKE KUPIGA HODI KAMA SAA

SABA. MAREHEMU MKEWE NA WATOTO WAKE WAWILI WALITOKA NJE.

NILIANZA KUWAKATA MAREHEMU MKEWE NA C MTOTO WAO MMOJA

KWA PANGA. BAADAYE NILIKIMBIA NA KULITUPA PANGA MTONI SIMIYU

NIKARUDI NYUMBANI. LILIPOPIGWA YOWE NILIENDA KUJIFICHA KIJIJI

CHA D NYAMIGAMBA BADALA YA KIJIJI CHANGU CHA CHANDULU. NDIPO

BAADAYE NILITAFUTWA NA KUKAMATWA HAYA NDIYO MAELEZO

YANGU.

From our scrutiny of this confession its gist is that the appellant lost his temper and E

was provoked when he received a Court summons about the case between him and

the deceased after Sungusungu had reconciled them and after he was made to cough

up a total of Shs. 30,000/= and the deceased had said that the quarrel between them

had ended. F

He was pained to see that his family had nothing to eat as he had paid all the money

he had in order to end the quarrel between him and the deceased but the deceased

had, it would appear, taken him for a ride.

Apparently neither in his judgment nor in his summing up to the gentlemen assessors

G did the learned trial judge mention the possibility that the appellant may have

been provoked by deceased's behaviour. Had he taken this possibility into account he

would no doubt have put to the assessors the question whether deceased's behaviour

could H have provoked an ordinary person of the community to which the appellant

belonged.

As it was held in the case of Chacha s/o Wambura v R. [1953] 20 EACA 339. "The

question of provocation is ordinarily one of fact and it is only in the clearest cases that

it should be withdrawn from consideration on that basis. All elements of provocation

I should be considered together in assessing their effect."

1992 TLR p301

The Eastern Africa Court of Appeal had also this to say in Festo Shirabu Musungu v.

A R. [1955] 22 EACA 454 - "Facts relied on as provocation do not have to be 'strictly

proved'. It is only necessary that there should be such evidence as to raise reasonable

probability that they exist. If this is the effect of the evidence, the onus lying upon the

prosecution is not discharged and murder is not proved." B

The question as to whether the appellant went to deceased's house and attacked him

immediately after he came to know of the Court summons was not gone into by the

trial Court and we are therefore unable to say whether or not the killing was done in

the C heat of passion caused by sudden provocation.

We are also not in a position to say what would have been the opinion of the assessors

on the question of provocation if the facts had been put to them.

This omission does, in our considered opinion, raise doubt as to whether an ordinary

D person of the community to which the appellant lived would not have been

provoked by deceased's outlandish behaviour. The doubt is resolved in favour of the

appellant and we accordingly find him not guilty of murder but guilty of the lesser

offence of manslaughter c/s 195 of the Penal Code. E

The conviction for murder is quashed and the sentence of death is hereby set aside.

Taking into account that the appellant has been in remand since 1989 and his not

very young age we feel that a sentence of 5 years imprisonment commencing from

the day F he was convicted - (11/3/92) will meet the justice of the case. The

appellant is so sentenced.

G Appeal allowed.

1992 TLR p302

A